What are the differences between inheritance at will and inheritance at law in Vietnam? What are the responsibilities of the heir?
What are inheritance and heirs?
Currently, the law does not specifically define the term "inheritance". However, according to the provisions on inheritance, the heir as well as the right to inherit, inheritance can be understood as the transfer of property of the deceased to the survivors according to the will or according to the provisions of law. According to that, the law divides inheritance into two cases, including:
- Inheritance at law
- Inheritance at will.
What are the differences between inheritance at will and inheritance at law in Vietnam? What are the responsibilities of the heir?
Distinguish between inheritance at will and inheritance at law in Vietnam?
Pursuant to the provisions of the 2015 Civil Code of Vietnam on inheritance, inheritance at will and inheritance at law are distinguished according to the following criteria:
Criteria | Inheritance at will in Vietnam | Inheritance at law in Vietnam |
Definition | Inheritance at will in Vietnam means an expression of the wishes of a natural person, made in order to bequeath his or her property to others after his or her death. (Article 624 of the 2015 Civil Code of Vietnam) | Inheritance at law in Vietnam means inheritance in accordance with the order of priority of inheritance and the conditions and procedures of inheritance provided by law. |
Application | A will shall become legally effective from the time of commencement of the inheritance. The time of commencement of an inheritance shall be the time when the deceased dies. | Inheritance at law shall apply in the following cases: - There is no will; - The will is unlawful; - All heirs under the will died prior to or at the same time as the testator dying, or the bodies or organizations which are entitled to inherit under the will no longer exist at the time of commencement of the inheritance; - The persons appointed as heirs under the will do not have the right to inherit or disclaimed the right to inherit. - Parts of an estate in respect of which no disposition has been made in the will; - Parts of an estate related to an ineffective part of the will; - Parts of an estate related to heirs under the will not having the right to inherit, having disclaimed the right to inherit, or having died prior to or at the same time as the testator dying; and parts of an estate related to bodies or organizations entitled to inherit under the will but no longer existing at the time of commencement of the inheritance. |
Decision-maker | - An adult satisfying conditions prescribed in Point a Clause 2 Article 630 of this Code may make a will to dispose his/her property. - A person who is between fifteen and eighteen years of age may make a will with the consent of his or her parents or guardian. | Inheritance at law is the case where the heirs are inherited according to the level of heirs. Therefore, the legal inheritance does not depend on the will of the person leaving the estate. Therefore, inheritance at law does not determine the establishment of inheritance as in the case of wills. |
Heirs | Any subject to whom the testator wishes to dispose of his/her estate to that subject, except for those who are not entitled to the estate, including: Persons convicted of having intentionally caused the death of or harmed the health of the deceased, of having seriously mistreated or tortured the deceased, or of having harmed the honor or dignity of the deceased; Persons having seriously breached their duty to support the deceased; Persons convicted of having intentionally caused the death of another heir in order to obtain all or part of the entitlement of such other heir to the estate; Persons deceiving, coercing or obstructing the deceased with respect to the making of the will, or forging, altering or destroying the will in order to obtain all or part of the estate contrary to the wishes of the deceased. However, in case of children who are minors, father, mother, wife or husband of the testator; children who are adults but who are incapable of working, if his/her name is not in the will, he/she is still entitled to a portion of the estate at least 2/3 of an inheritance. | Heirs at law are categorized in the following order of priority: - The first level of heirs comprises: spouses, biological parents, adoptive parents, offspring and adopted children of the deceased; - The second level of heirs comprises: grandparents and siblings of the deceased; and biological grandchildren of the deceased; - The third level of heirs comprises: biological great-grandparents of the deceased, biological uncles and aunts of the deceased and biological nephews and nieces of the deceased. Heirs at a lower level shall be entitled to inherit where there are no heirs at a higher level because such heirs have died, or because they are not entitled to inherit, have been deprived of the right to inherit or have disclaimed the right to inherit. |
Formalities | A will must be made in writing. If it is not able to be made in writing, it may be made orally. (Article 627 of the 2015 Civil Code of Vietnam) | Because inheritance at law does not depend on the will of the person leaving the estate, the estate will be divided according to the level of heirs prescribed by law. Therefore, inheritance at law does not have to be made in writing or orally or in any other form. However, all agreements by the heirs must be made in writing. (Clause 2 Article 656 of the 2015 Civil Code of Vietnam) In case of disagreement, a dispute arises, the judgment/decision of the Court will be followed. |
Succeeding heirs | No regulations. | Where a child of a testator died prior to or at the same time as the testator, the grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive. If the grandchildren also died prior to or at the same time as the testator, the great-grandchildren of the testator shall inherit that part of the estate which their father or mother would have been entitled to inherit had such father or mother still been alive. |
Distribution of estates | - An estate shall be distributed in accordance with the wishes of the testator. If the will fails to specify the share of each heir, the estate shall be divided equally between the persons named in the will, unless otherwise agreed. - Where a will provides for the distribution in kind of an estate, each of the heirs shall be entitled to receive his or her share in kind, plus the benefits and income derived therefrom, or must bear the depreciation in value of such share in kind up to the time when the estate is distributed. If the property which is the subject of a share in kind has been destroyed due to the fault of another person, the heir has the right to demand compensation for damage. - Where a will provides for the distribution of an estate according to certain proportions of the total value of the estate, such proportions shall be calculated on the basis of the value of the estate at the time of distribution. | - Heirs at the same level shall be entitled to equal shares of the estate. - If, at the time of distribution, an heir has been conceived but not yet born, a part of the estate equal to the share of another heir at the same level of heirs shall be set aside for the unborn heir. If the heir is born alive, he or she shall inherit such part of the estate. If the heir does not survive his or her birth, the other heirs at the same level of heirs shall be entitled to his or her share. - The heirs have the right to demand the estate to be distributed in kind. If the estate is not able to be equally distributed in kind, the heirs may agree that the property shall be valued and may agree on which heirs shall be entitled to receive which particular items of property. Failing such agreement, the assets in kind shall be sold for distribution. |
What are the responsibilities of heirs?
According to the provisions of Article 614 of the 2015 Civil Code of Vietnam and Article 615 of the 2015 Civil Code of Vietnam stipulating as follows:
Time when rights and obligations of heirs arise
From the time of commencement of an inheritance, the heirs have the property rights and obligations left by the deceased.
Performance of property obligations left by deceased
1. A person entitled to an inheritance has the responsibility to perform the property obligations within the scope of the estate left by the deceased, unless otherwise agreed.
2. Where an estate has not yet been divided, the property obligations left by the deceased shall be performed by the administrator of the estate as agreed by the heirs.
3. Where an estate has already been divided, each heir shall perform those property obligations left by the deceased corresponding to, but not exceeding, that part of the estate that the heir has inherited, unless otherwise agreed.
4. Where the heir inheriting an estate under a will is not a natural person, it must perform the property obligations left by the deceased in like manner as a natural person.
Thus, in principle, where an estate has already been divided, each heir shall perform those property obligations left by the deceased corresponding to, but not exceeding, that part of the estate that the heir has inherited, unless otherwise agreed.
LawNet
